State v. Muccio

• Decision Date: 08 March 2017
• Docket Number: A15-1951
• Citation: 890 N.W.2d 914
• Parties: STATE of Minnesota, Appellant, v. Krista Ann MUCCIO, Respondent.
• Court: Minnesota Supreme Court

890 N.W.2d 914

STATE of Minnesota, Appellant,

v.Krista Ann MUCCIO, Respondent.

A15-1951

Supreme Court of Minnesota.

Filed: March 8, 2017

Lori Swanson, Attorney General, Saint Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Jennifer S. Bovitz, Assistant County Attorney, Hastings, Minnesota, for appellant.

John G. Westrick, Westrick & McDowall-Nix, PLLP, Saint Paul, Minnesota, for respondent.

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, Saint Paul, Minnesota, for amicus curiae Minnesota Attorney General.

Caroline S. Palmer, Saint Paul, Minnesota, for amicus curiae Minnesota Coalition Against Sexual Assault.

OPINION

GILDEA, Chief Justice.

The question presented in this case is whether Minn. Stat. § 609.352, subd. 2a(2) (2016), violates the First Amendment to the United States Constitution. The State charged respondent Krista Muccio under Minn. Stat. § 609.352, subd. 2a(2), with felony communication with a child describing sexual conduct after she sent sexually explicit images and messages to a 15-year-old boy. Muccio moved to dismiss the charge, arguing that the statute facially violates the First Amendment because it proscribes a substantial amount of speech that the First Amendment protects. The district court agreed with Muccio and the court of appeals affirmed. Because we conclude that Minn. Stat. § 609.352, subd. 2a(2), is not substantially overbroad in relation to its plainly legitimate sweep, we reverse.

FACTS

In November 2014, a father reported to law enforcement that he found inappropriate photos on his 15-year-old son's iPad. The photographs depicted a female's bare genitals, a female naked from the neck to below the waist, and a female's buttocks covered by a thong. These photos were sent to the 15-year-old through respondent Krista Muccio's Instagram account via a direct message. At the time, Muccio was 41 years old. In a statement to the police, the 15-year-old said that, after he received these pictures from Muccio, he sent her a picture of his genitals. Additionally, Muccio and the 15-year-old exchanged sexually explicit text messages. In these messages, Muccio and the 15-year-old detailed the sexual acts they wanted to engage in with each other, including fellatio and anal sex.

Based on the photos and messages described above, the State of Minnesota charged Muccio in count one with felony communication with a child describing sexual conduct, in violation of Minn. Stat. § 609.352, subd. 2a(2), and in count two with felony possession of child pornography, in violation of Minn. Stat. § 617.247, subd. 4(a) (2016). The district court dismissed count one, concluding that Minn. Stat. § 609.352, subd. 2a(2), is facially overbroad under the First Amendment and therefore unconstitutional.¹ The court of appeals affirmed. State v. Muccio , 881 N.W.2d 149, 153 (Minn. App. 2016). We granted the State's petition for review.

ANALYSIS

We are asked to decide whether Minn. Stat. § 609.352, subd. 2a(2), is unconstitutionally overbroad under the First Amendment. This statute prohibits "[a] person 18 years of age or older" from "us[ing] the Internet, a computer, ... or other electronic device capable of electronic data storage or transmission" to "engag[e] in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct."² Id. To violate the statute, the adult must act "with the intent to arouse the sexual desire of any person." Id. , subd. 2a.

The statute's definitions help determine its sweep. A "child" is "a person 15 years of age or younger." Minn. Stat. § 609.352, subd. 1(a) (2016).³ "Sexual conduct" is "sexual contact of the individual's primary genital area, sexual penetration ..., or sexual performance." Id. , subd. 1(b) (2016). "Sexual penetration" and "sexual performance" are further defined in Minn. Stat. §§ 609.341 and 617.246 (2016), respectively.⁴

On appeal, the State argues that Minn. Stat. § 609.352, subd. 2a(2), is constitutional because it targets only unprotected speech, that any overbreadth is insubstantial, and that the statute is subject to a limiting interpretation that would preserve its constitutionality. In the alternative, the State contends that the statute is narrowly tailored to achieve a compelling government interest. For her part, Muccio argues that Minn. Stat. § 609.352, subd. 2a(2), burdens a substantial amount of constitutionally protected speech and is therefore unconstitutional on its face. The parties' arguments require us to address the constitutionality of Minn. Stat. § 609.352, subd. 2a(2). We review constitutional challenges de novo. State v. Washington-Davis , 881 N.W.2d 531, 537 (Minn. 2016).

We begin by interpreting the statute to determine its meaning. We then address whether the statute prohibits speech that the First Amendment protects. We conclude that the statute is overbroad because it regulates some protected speech, and so we analyze whether that overbreadth is substantial. For the reasons discussed below, we hold that the statute's regulation of protected speech is not substantial and therefore the statute does not violate the First Amendment on its face.

I.

The first step in determining whether a statute is unconstitutionally overbroad is to interpret the statute. United States v. Williams , 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ; Washington-Davis , 881 N.W.2d at 537. Our primary purpose in interpreting a statute is to "give effect to the legislature's intent." State v. Crawley , 819 N.W.2d 94, 102 (Minn. 2012). When determining the meaning of a statute, we interpret words "according to their common and approved usage." Minn. Stat. § 645.08(1) (2016). If the statute regulates only unprotected speech, the statute is constitutional unless it results in " ‘content discrimination unrelated to [its] distinctively proscribable content.’ " Washington-Davis , 881 N.W.2d at 537 (alteration in original) (quoting Crawley , 819 N.W.2d at 109 ). If, however, the statute proscribes some amount of protected speech, then the statute is constitutional unless it is substantially overbroad "in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma , 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) ; accord Washington-Davis , 881 N.W.2d at 537.

We turn then to interpret the statute to determine its meaning. See Williams , 553 U.S. at 293, 128 S.Ct. 1830 ; Washington-Davis , 881 N.W.2d at 537. The parties disagree about whether Minn. Stat. § 609.352, subd. 2a(2), implicates speech that the First Amendment protects. The parties' disagreement focuses on three different phrases within the statute: "engaging in communication," "intent to arouse," and "relating to or describing sexual conduct." Minn. Stat. § 609.352, subd. 2a (2016). We examine each disputed phrase in turn.

A.

First, the parties dispute the interpretation of the phrase "engaging in communication with a child." Minn. Stat. § 609.352, subd. 2a(2). Muccio contends that this phrase, when properly interpreted, proscribes non-targeted mass electronic communications, including advertisements and public social-media posts, that a child happens to see even though the communication was not directed at the child. The State and the Minnesota Attorney General, as amicus curiae in support of the State, argue that the phrase "engaging in communication with a child" requires the communication to be directed at a child. We agree with the State and the Attorney General.

The phrase "engaging in communication with a child" requires the adult to direct the prohibited content at a child. The term "engage," used as an active verb in the statute, means "to take part: participate." Merriam Webster's Collegiate Dictionary 383 (10th ed. 2001). "Communication" means "an act or instance of transmitting." Id. at 232. Finally, in the context of the statute, the term "with" is used as "a function word to indicate the object of attention, behavior, or feeling." Id. at 1354. Applying these definitions, we conclude that the statute prohibits an adult from participating in the electronic transmission of information relating to or describing sexual conduct if the intended target or object of the transmission is a child.

Contrary to Muccio's argument, therefore, the statute does not proscribe non-targeted mass electronic communications, such as posting non-targeted social- media posts that a child happens to view. Similarly, Internet social-media posts with a more limited audience, such as a post that can only be viewed by a person's Facebook friends or a message posted on an Internet message board, are not directed at a child simply because the people who could possibly view such a post include children. Instead, for a transmission to be directed at a child, the child must be the object of the adult's attention. In other words, to engage in communication with a child, the adult must take some affirmative act to specifically select or designate the child as a recipient of the transmission.

B.

We turn next to the parties' second interpretive disagreement, which involves the statute's intent requirement. This part of the statute prohibits electronic communications if the adult acts "with the intent to arouse the sexual desire of any person." Minn. Stat. § 609.352, subd. 2a. Muccio contends that when the statute requires an "intent to arouse any person," the object of that intent is not restricted to the child or the adult involved in the communication. The State and the Attorney General respond by arguing that the phrase "any person" can be limited to "any person involved in the communication." According to the Attorney General, this interpretation is consistent with the Legislature's purpose in enacting the statute and the structure of the statute. We agree with Muccio.

The phrase " ‘[w]ith intent to’ ... means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if...